2019 (7) TMI 899 - AT - Central Excise

Tribunal sets aside Order-in-Appeal due to service issues, emphasizing proper procedures.

The Tribunal allowed the appeal, setting aside the Order-in-Appeal and remanding the case for consideration on merits. The decision emphasized the ... Maintainability of appeal - service of order - Period of limitation for filing an appeal - Section 37C of the Central Excise Act, 1944 - HELD THAT:- A plain reading of the provisions of Section 37 C makes it clear that it is mandatory for any decision or order to be served by sending it by registered post with acknowledgement due. The requirement of acknowledgement is there to ensure that the notice or decision or an order which has been sent to the assessee or any party has been received by them. In this case, we find that though the Order-in-Original has been dispatched by registered post on 26.07.2016, but the Department has not been able to produce any evidence to show that the registered post which was sent on 26.07.2016 was actually delivered to the appellant - It is also matter of fact that the appellant came to know of such Order-in-Original only when the recovery proceedings were started against it and immediately it made an effort to get the copy of the Order-in-Original dated 26.07.2016 and thereafter the appeal had been filed in time before Commissioner (Appeals). We do not agree with the findings of the ld. Commissioner (Appeals) that the date of the service of the order as per the law is the date of sending of the same by registered post - The requirement of the “acknowledgement due” ensures that the decision or order which has been sent to any assessee has actually been served on him. Therefore, the Order-in-Appeal dated 30th November, 2017 deserves to be set aside and it has to be held that the Appeal was filed within time. The appeal of the appellant before the Commissioner (Appeals) should be restored to its original number and same should be heard and decided on merits - appeal allowed by way of remand. Issues:1. Appeal against Order-in-Original rejected on grounds of limitation.2. Dispute regarding the service of Order-in-Original to the appellant.3. Interpretation of Section 37C of the Central Excise Act, 1944.4. Consideration of evidence for actual service of Order-in-Original.5. Comparison of legal precedents regarding service of orders.Analysis:1. The appellant filed an appeal against Order-in-Original No.45 dated 26.07.2016, rejected by the Commissioner (Appeals) citing limitation without assessing the merits of the case. The appellant claimed non-receipt of the order and filed an appeal within the statutory period upon learning about it during recovery proceedings.2. The appellant argued that the Department failed to prove the delivery of the Order-in-Original despite sending it by registered post. The appellant's efforts to obtain a copy through RTI after initiation of recovery proceedings were highlighted, challenging the validity of the service.3. Section 37C of the Central Excise Act, 1944 mandates service of decisions/orders by registered post with acknowledgment due. The absence of evidence confirming delivery raised doubts about the service, emphasizing the importance of acknowledgment to ensure receipt by the concerned party.4. The Commissioner (Appeals) relied on the report of the Assistant Commissioner (Adjudication) but lacked substantial evidence of actual service, only presenting a copy of the postal receipt. The appellant's contention regarding the absence of acknowledgment for the registered post was crucial in determining the validity of the service.5. Legal precedents, including the Rajasthan High Court's judgment in a similar case, emphasized the significance of adherence to Section 37C requirements for valid service. The court's decision to set aside the Order-in-Appeal and remand the case for consideration on merits highlighted the importance of proper service procedures for legal validity.This detailed analysis of the judgment showcases the issues involved, the arguments presented, and the legal interpretations made by the Tribunal to arrive at the decision to allow the appeal for a reevaluation on its merits.